[Federal Register Volume 87, Number 228 (Tuesday, November 29, 2022)]
[Notices]
[Pages 73390-73392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25999]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0334]


Hours of Service of Drivers: National Cattlemen's Beef 
Association; Livestock Marketing Association; American Farm Bureau 
Federation; American Beekeeping Federation; American Honey Producers 
Association; and National Aquaculture Association; Application for 
Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition; denial of application for 
exemption.

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SUMMARY:  FMCSA announces its decision to deny the joint application 
from the National Cattlemen's Beef Association, Livestock Marketing 
Association, American Farm Bureau Federation, American Beekeeping 
Federation, American Honey Producers Association and National 
Aquaculture Association for an exemption from certain provisions in the 
hours-of-service (HOS) rules. The requested exemption was made on 
behalf of drivers who transport livestock, insects, and aquatic 
animals. The applicants requested approval for drivers, after 10 
consecutive hours off duty, to drive through the 16th consecutive hour 
after coming on duty, and to drive a total of 15 hours during that 16-
hour period. FMCSA analyzed the application and public comments and has 
determined that the exemption would not achieve a level of safety that 
is equivalent to, or greater than, the level that would be achieved 
absent such exemption.

DATES: FMCSA denied the application for exemption on November 29, 2022.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2018-0334 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. See the 
Public Participation and Request for Comments section below for further 
information.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    Each submission must include the Agency name and the docket number 
(FMCSA-2018-0334) for this notice. Note that DOT posts all comments 
received without change to www.regulations.gov, including any personal 
information included in a comment. Please see the Privacy heading 
below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. To be sure someone is there to help you, 
please call (202) 366-9317 or (202) 366-9826 before visiting Dockets 
Operations.
    Privacy: In accordance with 49 U.S.C. 31315(b), DOT solicits 
comments from the public to better inform its exemption process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice DOT/ALL 14-FDMS, which can be reviewed at 
https://www.transportation.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards, FMCSA, at (202) 366-2722 or by email at 
[email protected]. If you have questions on viewing or 
submitting material to the docket, contact Dockets Operations at (202) 
366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2018-0334), indicate the specific section of this 
document to which the comment applies, and provide a reason for 
suggestions or recommendations. You may submit your comments and 
material online or by fax, mail, or hand delivery, but please use only 
one of these means. FMCSA recommends that you include your name and a 
mailing address, an email address, or a phone number in the body of 
your document so the Agency can contact you if it has questions 
regarding your submission.
    To submit your comment online, go to www.regulations.gov and put 
the docket number (``FMCSA-2018-0334'') in the

[[Page 73391]]

``Keyword'' box, and click ``Search.'' When the new screen appears, 
click on the ``Comment'' button and type your comment into the text box 
in the following screen. Choose whether you are submitting your comment 
as an individual or on behalf of a third party and then submit. If you 
submit your comments by mail or hand delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope. FMCSA will consider all comments 
and material received during the comment period.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant 
exemptions from Federal Motor Carrier Safety Regulations (FMCSRs). 
FMCSA must publish a notice of each exemption request in the Federal 
Register (49 CFR 381.315(a)). The Agency must provide the public an 
opportunity to inspect the information relevant to the application, 
including any safety analyses that have been conducted. The Agency must 
provide an opportunity for public comment on the request.
    The Agency reviews safety analyses and public comments submitted 
and determines whether granting the exemption would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305). The Agency must 
publish its decision in the Federal Register (49 CFR 381.315(b)) with 
the reasons for denying or granting the application and, if granted, 
the name of the person or class of persons receiving the exemption and 
the regulatory provision from which the exemption is granted. The 
notice must specify the effective period and explain the terms and 
conditions of the exemption. The exemption may be renewed (49 CFR 
381.300(b)).

III. Request for Exemption

    The National Cattlemen's Beef Association, Livestock Marketing 
Association, American Farm Bureau Federation, American Beekeeping 
Federation, American Honey Producers Association and National 
Aquaculture Association (applicants) submitted a joint exemption 
application from 49 CFR 395.3(a)(2) and (a)(3). The exemption would 
allow covered drivers, after taking 10 consecutive hours off duty, to 
drive through the 16th consecutive hour after coming on duty, and to 
drive a total of 15 hours during that 16-hour period. They note that 
livestock haulers are currently permitted to operate in ``an exempt 
zone within a radius of 150 air miles'' of the source of an 
agricultural commodity (49 CFR 395.1(k)(1)). FMCSA's published 
regulatory guidance provides that time spent working within the 150 
air-mile radius does not count toward the driver's daily and weekly HOS 
limits (83 FR 26374). Accordingly, the 15- and 16-hour limits requested 
by the applicants would begin after a livestock hauler travels outside 
the 150 air-mile radius. The requested exemption would apply to all 
livestock, insect, and aquatic animal transporters and their drivers.
    The applicants state that the maximum driving and on-duty limits of 
the HOS regulations as applied to their operations may place the well-
being of livestock at risk during transport and impose significant 
burdens on livestock haulers, particularly in rural communities across 
the country. They advise that their drivers would comply with all other 
HOS rules, including the 60/70-hour limits.
    The applicants add that while most of their trips fall within the 
current HOS limits, some of the longer trips cannot be completed under 
the 11- and 14-hour rules. These trips are affected by ``immutable 
factors'' such as weather. In the cattle industry, the locations of 
cow-calf operations, grazing lands, feedlots, and processing facilities 
determine how far a livestock hauler must travel in a single trip. 
Livestock haulers transport animals from farms and ranches to auction 
markets, where the stock is sold. Once sold, the animals are often 
transported to grazing lands and feed yards, mostly located in the 
Central Plains and Southwest. After grazing and feeding, livestock are 
transported a final time to processing facilities, where they are 
transformed into consumable meat and sold. In addition, transportation 
of bees necessary to pollinate numerous crops, tree nuts, fruits, and 
vegetables requires some of the longest trips in the country. The 
applicants estimate that 25-30 percent of livestock-hauling trips would 
be conducted under the requested exemption.
    The applicants suggest they could achieve a level of safety 
equivalent to or greater than the level of safety that would be 
obtained without the exemption by adopting fatigue risk management 
systems. The applicants describe a fatigue management system for 
livestock haulers developed in Australia. Specifically, the applicants 
propose: participating in training to be developed by the livestock 
industry, in consultation with FMCSA, that addresses fatigue 
countermeasures; adopting fatigue risk management practices including 
completing a safe driving plan before each trip and completing a 
fitness for duty assessment before each trip; and adopting company 
practices to support fatigue risk management, including internal 
audits. The applicants included with their petition an appendix 
including 54 supporting documents.
    A copy of the application for exemption and appendices is available 
for review in the docket for this notice.

IV. Public Comments

    On February 6, 2019, FMCSA published notice of this application and 
requested public comment (84 FR 2304). The Agency received 359 total 
sets of comments, 43 opposed to the request. The following five 
organizations opposed the exemption: the National Transportation Safety 
Board (NTSB); Commercial Vehicle Safety Alliance (CVSA); Truckload 
Carriers Association (TCA); Iowa Motor Truck Association (IMTA); and 
the Animal Welfare Institute.
    IMTA commented that livestock haulers should be held to the same 
HOS standards as the rest of the industry. If these loads require the 
truck to keep moving due to the live animals on the truck or trailer, 
and the run can't be completed within the normal 11 hours of driving, 
then the carrier should be required to put a team of two drivers into 
the vehicle. That would enable them to get the load delivered, while 
remaining in compliance with the standard HOS regulations. IMTA further 
added that livestock haulers are already exempt from HOS under the 
agricultural exemption when running within a 150-mile radius and from 
the requirement to operate electronic logging devices (ELDs).
    TCA raised a similar objection regarding the 150 air-mile radius-
from-the-source exemption for livestock haulers, adding that this 
requested exemption would add significant driving and on-duty time to a 
driver's trip, as the ``HOS clock'' does not start until they drive 
outside of the exempt zone.
    CVSA added that it opposes this exemption request, as it is both 
unjustified and impractical. According to CVSA, exemptions from federal 
safety regulations, first and foremost, have the potential to undermine 
safety, while also complicating the enforcement process. For these 
reasons, and to protect the safety of these truck drivers and the 
general motoring public, CVSA requested the Agency to deny the 
petition.

[[Page 73392]]

    NTSB added that although the applicants propose implementing a 
fatigue risk management system to provide an adequate level of safety 
in lieu of the standard HOS requirements, FMCSA does not have a means 
to track, evaluate, or validate the effectiveness of such a system. 
NTSB said that FMCSA should therefore deny the requested exemption, and 
any similar exemption.
    Two hundred ninety-four comments were filed in support of the 
request. Fifty-two were filed by State trucking associations related to 
livestock and cattlemen, including comments from all the original 
applicants. The remainder of the supporting comments were from 
individuals and trucking companies, primarily those hauling livestock. 
The supporters of the exemption reiterated the scenario provided in the 
application and supported four additional hours of drive time to 
facilitate longer hauls that are necessitated by the distances between 
where cattle are born, fed, and harvested. The supporters referenced 
industry guidelines that direct drivers to avoid stops while hauling 
livestock, especially in warmer weather, as the trailers are designed 
to cool the animals while in motion. According to many who supported 
the request, the majority of livestock cannot withstand the stress of 
10 hours stopped without airflow or the added time on the trailer 
necessitated by such an extended rest. Sixteen commenters took no 
position either for or against the exemption request, and 6 others 
asked that livestock carriers be exempted from the ELD regulations.

V. FMCSA Safety Analysis and Decision

    FMCSA evaluated the joint application and public comments and 
denies the exemption request. Research studies demonstrate that long 
work hours reduce sleep and harm driver health, and that crash risk 
increases with work hours. The HOS regulations impose limits on when 
and how long an individual may drive, to ensure that drivers stay awake 
and alert, and to reduce the possibility of cumulative fatigue. As 
stated by opponents of the exemption, livestock haulers have been 
required to operate within the confines of the HOS regulations for over 
80 years.
    Livestock haulers are entirely exempt from all HOS regulations 
under the agricultural commodities exemption in 49 CFR 395.1(k)(1), 
which covers a 150 air-mile radius from the source of the agricultural 
commodities. In addition, Section 23018 of the Bipartisan 
Infrastructure Law, Public Law 117-58, 135 Stat. 429, Nov. 15, 2021, 
enacted after applicants filed their exemption request, now provides 
that drivers transporting livestock are also exempt from all HOS 
regulations within a 150 air-mile radius from the final destination of 
the livestock. Livestock haulers remain exempt from the requirement to 
use ELDs.
    If the Agency were to grant the exemption, drivers transporting 
agricultural commodities would be allowed six or more hours of driving 
time within the 150 air-mile exempt zones for the transportation of 
agricultural commodities, in addition to the 15 hours of driving time 
outside the zone. The Agency finds that allowing 21 or more hours of 
driving during a work shift would not likely achieve a level of safety 
that is equivalent to, or greater than, the level that would be 
achieved absent the exemption.
    Although the applicants suggest that they could adopt a fatigue 
risk management system to ensure safety, fatigue risk management 
systems must be scientifically validated. FMCSA has promoted the 
voluntary adoption of fatigue management programs, including the North 
American Fatigue Management Program. Those voluntary fatigue management 
measures do not replace the safety benefits of compliance with the HOS 
regulations.
    For these reasons, and to protect the safety of these truck drivers 
and the public, the FMCSA denies the request for exemption.

Robin Hutcheson,
Administrator.
[FR Doc. 2022-25999 Filed 11-28-22; 8:45 am]
BILLING CODE 4910-EX-P


